Tipalea Watson Pty Ltd v Ku-Ring-Gai Council [2003] NSWLEC 253

Tipalea Watson Pty Ltd v Ku-Ring-Gai Council [2003] NSWLEC 253

On an overall qualitative and quantitative comparison, the Court was satisfied that the modified development was substantially the same as the originally approved development. The relevant consent conditions gave the approved development some design flexibility and contributed to the need for modifications. The proposed changes, including external appearance and basement alterations, did not radically transform the approved development, and there was no evidence that the modified architectural features were particularly important, material or essential to the original approval. The SEPP 5 character of the housing and modifications enhancing accessibility and adaptability for older or...

Jurisdiction
Australia
Judgment Date
24 October 2003
Procedural Posture
Appeal Pursuant to the Environmental Planning and Assessment Act 1979, S 96(6) Against Refusal of a Modification Application / Determination of Preliminary Question Raised by Notice of Motion
Outcome
Preliminary question answered in the affirmative.
Legal Topics
['modification of Development Consent' 'substantially the Same Development' 'sepp 5 Housing' 'preliminary Question']
['environmental Planning and Development' 'land and Environment'] ['modification of Development Consent' 'substantially the Same Development' 'sepp 5 Housing' 'preliminary Question']

Case Brief

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Procedural Posture

Appeal Pursuant to the Environmental Planning and Assessment Act 1979, S 96(6) Against Refusal of a Modification Application / Determination of Preliminary Question Raised by Notice of Motion

Legal Issues

  1. 1 ['Whether the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted.' 'How conditions of the original development consent requiring or contemplating changes affect the comparison required by Environmental Planning and Assessment Act 1979, s 96(2)(a).']

Ratio Decidendi

On an overall qualitative and quantitative comparison, the Court was satisfied that the modified development was substantially the same as the originally approved development. The relevant consent conditions gave the approved development some design flexibility and contributed to the need for modifications. The proposed changes, including external appearance and basement alterations, did not radically transform the approved development, and there was no evidence that the modified architectural features were particularly important, material or essential to the original approval. The SEPP 5 character of the housing and modifications enhancing accessibility and adaptability for older or...

Court Disposition

Preliminary question answered in the affirmative.

Orders

  • ["The Applicant's preliminary question be answered in the affirmative." "The proceedings be stood over to the Registrar's callover on Wednesday 29 October 2003." 'Exhibits (other than Exhibit 1) be returned.']